Condemned Columbus stocking strangler seeks DNA test

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By Bill Rankin

The Atlanta Journal-Constitution

Contending the so-called Columbus stocking strangler’s conviction was based partly on unreliable – and unchallenged – biological evidence, lawyers want a judge to halt Carlton Gary’s execution and allow a DNA test to determine his guilt or innocence once and for all.

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Carlton Gary

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The request was submitted Monday to Muscogee County Superior Court Judge Robert Johnston, who signed Gary’s death warrant last week. Gary is scheduled to be put to death by lethal injection on Dec. 16.

"A cloud has hung over the Carlton Gary case for decades," Jack Martin, one of Gary's lawyers, said. "This is the classic circumstance where DNA testing can conclusively answer the question as to whether Carlton Gary committed these awful crimes."

Martin's motion said that, for years, prosecutors have told Gary's lawyers that semen evidence from the case no longer existed. But last week, Martin said, he and Aimee Maxwell, executive director of the Georgia Innocence Project, found semen evidence collected from the victims that had been stored in the property room of the Columbus Police Department.

Gary's court motion relies on a 2003 state law that allows DNA testing in cases where there is a reasonable probability a different verdict could have been reached if DNA testing had been available at trial. DNA testing was unavailable when Gary was tried in 1986.

Retired judge Bill Smith, who prosecuted Gary as a district attorney, declined to comment on Gary's appeals.

Gary was sentenced to death for raping three women -- Florence Scheible, 89; Martha Thurmond, 69; and Kathleen Woodruff, 74 -- and then strangling them with their stockings. Prosecutors said Gary was also responsible for sexually assaulting and attacking four other women during a crime spree from Sept. 1977 to April 1978.

Evidence of the other attacks was introduced at trial. One surviving victim identified Gary, saying that she recognized him as her attacker when she saw him on TV seven years later -- although she had said she could not identify her attacker because the lights were off.

Fingerprint evidence placed Gary at the homes of three women he was accused of killing. Gary did not deny being at the scenes but said an accomplice sexually assaulted and killed the women.

Prosecutors also told jurors that in 1970 Gary pleaded guilty to the robbery of an elderly woman in Albany, N.Y., who had been raped and strangled. Gary told police a friend committed the killing.

In 1977, after he was paroled, Gary was suspected of trying to strangle a Syracuse, N.Y., woman. She could not identify Gary, but a watch stolen from her home was traced to him.

Gary was returned to prison but escaped, fleeing to Columbus shortly before the stocking strangler killings began.

At trial, Gary's lawyer was denied repeated requests for funds to hire an expert to evaluate the state's evidence. According to trial testimony, there was no blood found in the semen recovered at crime scenes. At the time, a test for the secretion of blood into a defendant's bodily fluids was the most common evidentiary test in sexual assault cases.

Tests of semen recovered from the victims determined the killer was a weak secreter. But a test of Gary’s saliva in 1984 showed he was a strong secreter.

Even so, GBI crime lab technician John Wegel testified at trial that Gary could not be eliminated as a suspect because both he and the killer had type O-positive blood. Wegel testified that Gary could be someone who is a weak secreter of blood into his semen and a strong secreter into his saliva.

Gary’s lawyers have long challenged this testimony. Only during appeals in federal court did Gary's legal team get funds to hire a forensic expert – Roger Morrison, a laboratory director of the Alabama Department of Forensic Science. Morrison testified the GBI failed to use a more reliable test of the blood evidence and said Wegel’s conclusions about Gary are “flatly contradicted by all the published literature,” Friday’s court motion said.

Gary's lawyers have also contended prosecutors withheld evidence at trial that would have helped the defense. This includes a shoe print found at one of the scenes suggesting the killer wore a size 9 (Gary wore a size 13 and a half) and a bite mark left on one of the victims that would have eliminated Gary as that woman's attacker, Gary's lawyers contend.

If Gary's request for DNA testing is denied, his lawyers will appeal to the Georgia Supreme Court. In 2004, the state high court halted the execution of condemned killer Eddie Albert Crawford to consider his request for DNA testing. But the court ultimately ruled against him, and Crawford was executed in July 2004.